EDWARD SHEA, District Judge.
On June 2, 2003, the Court heard argument on Plaintiff's Motion for Approval of Notice of Settlement of Class Action, (Ct. Rec. 303). James M. Danielson, Peter Spadoni and Brian Huber appeared on behalf of the Plaintiff. Robert Liewellyn Parlette appeared on behalf of the named Defendants. Brendan Monahan appeared on behalf of the Intervening Defendants. After considering the argument of counsel, the Court grants the motion and approves the Notice of Settlement of Class Action, as set forth in Attachment A, for distribution to class members. Accordingly,
IT IS HEREBY ORDERED:
1. Plaintiff's Motion for Approval of Notice of Settlement of Class Action, (Ct. Rec. 303), is GRANTED.
2. The class action notice, as set forth in Attachment A, is approved for distribution to the class members.
3. The Apple Commission will mail out notices as soon as practicable after the receipt of this order.
IT IS SO ORDERED. The District Court Executive is directed to
(A) Enter this Order; and
(B) Provide copies to all counsel.
ATTACHMENT A UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
IN RE WASHINGTON STATE APPLE ADVERTISING COMMISSION NO. CS-01-0278-EFS
NOTICE OF SETTLEMENT OF CLASS ACTION
NOTICE OF SETTLEMENT OF CLASS ACTION NOTICE TO CLASS MEMBERS
NOTICE is given to all apple growers, upon whom the Washington State Apple Advertising Commission (the "Apple Commission") levies and collects assessments, that:
1. This notice is being sent to you in your capacity as a member of the defendant Class.
2. This lawsuit was filed in federal court on approximately January 9, 2002.
3. The underlying issue involved in this litigation was whether the Apple Commission's authority to levy and collect assessments from apple growers violates the apple growers' free speech rights guaranteed by the Constitution of the United States of America and the Constitution of the State of Washington.
4. The members of the class are defined as all apple growers who assert or may assert that the Apple Commission's authority to levy and collect assessments violates their free speech rights guaranteed by the Constitution of the United States of America and the Constitution of the State of Washington.
5. Jack Nickell Orchards, LLC and Ron Myers Orchard, Inc. were named as the representative parties of the class. The named representative parties were determined to possess the ability and capacity to adequately represent the interests of the class.
6. The attorneys for the class representative are:
Davis, Arneil Law Firm, LLP Attn: Mr. Robert L. Parlette 617 Washington Street P.O. Box 2136 Wenatchee, WA 98807-2136 (509) 662-3551 You may contact Mr. Parlette at the above office should you have any questions regarding the effect this litigation or the tentative settlement (described below) may have on your constitutional rights.
7. Since the lawsuit was filed, certain growers of organically produced apples (hereinafter the "Intervening Organic Defendants") and three companies in the Yakima area that grow and pack apples, Washington Fruit Produce Co., Borton Sons, Inc. and Evans Fruit Co. (hereinafter the "Intervening Defendants") were granted leave to intervene in the lawsuit. The Apple Commission reached a settlement with the Intervening Organic Defendants, and the Court approved that settlement on May 1, 2003.
8. The Apple Commission and the other remaining parties to this lawsuit (i.e., the defendant class and the Intervening Defendants) have tentatively agreed upon a settlement that, if approved by the Court, will resolve and release all of the pending claims against the Apple Commission, the Commissioners, and the state of Washington.
9. On July 23, 2003, at 1:30 p.m., the Court will conduct a hearing for the purposes of determining whether to approve the settlement at the United States Courthouse at 825 Jadwin Avenue, Richland, Washington.
10. Complete documents setting forth all of the terms of settlement with the various parties are on file with the Court. Those documents will be posted on the Court's internet website and made available for downloading by the public.
11. The settlement reached by the parties, if approved by the Court, will include the following terms and conditions:
The Apple Commission will cease any speech related functions (e.g., advertising and promotional activities) and will continue to conduct its non-speech related functions. Those non-speech related functions include:
a. Scientific research to develop and discover the health, food, therapeutic and dietetic value of apples and apple products;
b. Commodity-related education, training, and leadership programs;
c. Applying for, prosecuting and administering grants of federal, and other, funding for the benefit of the Washington apple industry to the extent the administration of such funding or grants does not involve speech activities funded by Apple Commission mandatory assessments. With specific reference to the United States Department of Agriculture, Foreign Agricultural Services, Market Access Program ("MAP"), no mandatory assessments may be used for speech activities even if necessary for MAP matching funds;
d. Representing the Apple Commission in foreign trade activities and negotiations;
e. Protection and maintenance of Apple Commission Intellectual Property; and
f. Such other non-speech activities as authorized by RCW 15.24 and are approved by the Apple Commission membership.
The mandatory assessment rate imposed under RCW 15.24.100 will be reduced to the equivalent $0.035 (3.5 cents per box) for a "Standard Tray Pack Container." The amount of this mandatory assessment rate is 14% of the current rate. The new mandatory assessment rate of 3.5 cents per box will be effective on September 1, 2003 as to all varieties except Golden Delicious, Red Delicious and Fujis. The new assessment rate will be effective as to those three varieties starting on October 1, 2003.
The Apple Commission will make a legislative proposal to the Washington State Legislature for:
a. a redistricting provision to allocate commission seats to regions based on the planted acreage in each district;
b. amendment to RCW 15.24.090 and — .100 to set the mandatory assessment at 1.68 cents on each one hundred pounds gross billing weight (3.5 cents per "Standard Tray Pack Container");
c. a requirement of two-thirds approval (instead of the current majority) of growers and acreage for any increase in the amount of the mandatory assessment; and
d. a requirement that commission meetings rotate between Wenatchee and Yakima.
The Court's prior rulings will remain in effect except to the extent modification is found appropriate.
All parties retain their rights to challenge future actions on the part of the Apple Commission. Likewise, the Apple Commission retains all of its defenses to those challenges.
The Apple Commission will pay the Intervening Defendants' attorney fees and costs. The Apple Commission will also pay the defendant class representatives' attorney's fees and costs pursuant to the partial settlement agreement between the Apple Commission and the defendant class representatives dated April 25, 2003 and the amendment thereto.
SETTLEMENT APPROVAL HEARING
If you wish to object to, or comment upon, the terms of this settlement, you may do so by providing the Clerk of the Court with your name and address, and a written statement of your desire to appear and testify before the Court at 1:30 p.m. on July 23, 2003 at the United States District Court for the Eastern District of Washington, (825 Jadwin Avenue, Room 189), in Richland, Washington. Your declaration of an intent to object to, or comment upon, this settlement must be received by the Clerk of the Court no later than seven (7) days prior to the July 23, 2003, hearing.
DATED this _____ of June 2003.
JEFFERS, DANIELSON, SONN AYLWARD, P.S.
By ___________________________________
JAMES M. DANIELSON, WSBA #01629 Attorneys for the Apple Commission 2600 Chester Kimm Road P.O. Box 1688 Wenatchee, WA 98807-1688 (509) 662-3685